Livingston v. Ogilvie

Mr. Justice Schaefer and Mr. Justice Ward, dissenting :

We concur in the judgment of the court insofar as it relates to the non-partisan election of delegates, the oath, and to the one-man-one-vote issue. But we do not agree with the decision of the court on the question of the eligibility of members of the constitutional convention.

Section 1 of article XIV of the constitution fixes the qualifications of members of a constitutional convention. It provides: “The qualifications of members shall be the same as that of members of the Senate, * * Section 3 of Public Act 76 — 40 repeats the language of the constitution and then adds the underscored clause: “The qualifications of members shall be the same as that of members of the Senate, except that any person who otherwise qualifies but is a member of the General Assembly or holds any other elective or appointive office under the Constitution or laws of this state may also serve as a member of the Convention.” One of the issues raised by the plaintiff in this case is the validity of the "except” clause in section 3 which is said to depart from the constitutional statement of qualifications.

One of the constitutional provisions that states the qualifications of members of the senate is section 3 of article IV. The first three sentences of that section provide: “No person shall be a senator who shall not have attained the age of twenty-five years, or a representative who shall not have attained the age of twenty-one years. No person shall be a senator or a representative who shall not be a citizen of the United States, and who shall not have been for five years a resident of this state, and for two years next preceding his election a resident within the territory forming the district from which he is elected. No judge or clerk of any court, secretary of state, attorney general, state’s attorney, recorder, sheriff, or collector of public revenue, member of either house of congress, or person holding any lucrative office under the United States or this state, or any foreign government, shall have a seat in the general assembly: * *

Section 1 of article XIV “incorporates bodily” the provisions of section 3 of article IV which govern the qualifications of senators and makes those qualifications applicable to members of the constitutional convention. (See, e.g. Hassett v. Welch, 303 U.S. 303, 314 , 82 L. Ed. 858, 866-7 ; Kloss v. Suburban Cook County Tuberculosis Sanitarium Dist., 404 Ill. 87, 94 .) So incorporated, and as they bear upon the qualifications of members of a convention, they read: “No person shall be a member of a constitutional convention who shall not have attained the age of twenty-five years * * *. No person shall be a member of a constitutional convention who shall not be a citizen of the United States, and who shall not have been for five years a resident of this state, and for two years next preceding his election a resident within the territory forming the district from which he is elected. No judge or clerk of any court, secretary of state, attorney general, state’s attorney, recorder, sheriff, or collector of public revenue, member of either house of congress, or person holding any lucrative office under the United States or this state, or any foreign government, shall have a seat in the constitutional convention: * * *.” By using the drafting technique of incorporation by reference, the draftsmen of the constitution accomplished the identical result that would have been achieved by including a specific reference to the qualifications of members of a constitutional convention in section 3 of article IV. The fact that a proposal for such a specific reference was not adopted is therefore of no significance.

It is at once apparent that no person who holds one of the offices enumerated in the third sentence of section 3 of article IV of the constitution, or who holds “any lucrative office under the United States or this state or any foreign government, shall have a seat” in the constitutional convention. It is undisputed that members of the General Assembly hold civil offices (see Const, art. V, sec. 25) and that those offices are lucrative. It follows that persons who hold any of the offices specifically mentioned in section 3 of article IV, members of the General Assembly, and any other persons who hold lucrative offices, are prohibited from having seats in a constitutional convention.

The effect of the constitutional qualifications upon membership in a constitutional convention does not mean that the officers mentioned in section 3 of article IV of the constitution, members of the General Assembly or other persons who hold lucrative offices, may not serve as members of the constitutional convention. It does mean, however, that those persons may not do so while holding their present offices.

The opinion of the majority fails to discuss the third sentence of section 3 of article IV even though it speaks directly to the question before the court — eligibility to “have a seat in the general assembly,” and so, also, eligibility to “have a seat in a constitutional convention.” Instead, the opinion lumps the third sentence of section 3 of article IV with the fourth sentence, and describes both as “merely a prohibition against holding two offices at the same time as described therein and is not a bar to eligibility for senator.” We do not understand how it can be said that a provision which prohibits having a seat in the general assembly can be said not to be “a bar to eligibility for senator.”

In our view it is unnecessary to look beyond the provisions of the constitution that have been discussed in order to dispose of the question of eligibility to have a seat in the convention. But since the court has gone further, we think it is appropriate to state that in our opinion a member of a constitutional convention holds a public office within the meaning of section 24 of article V of the constitution which provides : “An office is a public position created by the constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed. An employment is an agency, for a temporary purpose, which ceases when that purpose is accomplished.” Certainly a member of a constitutional convention holds a public position created by the constitution.. The constitution itself provides for the election of successors, in the event of “vacancies occurring” during the convention. (Art. XIV, sec. 1) So does section 4 of Public Act 76 — 40. The only possible question is whether the position continues for a fixed time. That question is answered, we think, by Public Act 76 — 40, which in section 8 provides that members can receive pay only “for a period not to exceed 8 months.” If that is not conclusive, section 19 provides that Public Act 76 — 40 is repealed effective June 30, 1971. This provides a fixed terminal date.

Finally, there is the problem of separability. Strong arguments can be advanced in support of the desirability of including as members of a constitutional convention those persons who are experienced in the executive, legislative and judicial branches of the State government. It seems clear that these are the policy considerations that prompted the legislature to adopt the “except” clause of section 3 of the statute. But we are aware of no considerations of policy which would argue in favor of permitting members of the legislative branch to serve in a constitutional convention while excluding State officers in the executive and judicial branches of the government. To reach that result, it is necessary to hold not just that the entire “except” clause is separable, but that the “except” clause can itself be dismembered and sustained in part and invalidated in part. Because we do not believe the General Assembly would have intended to make only themselves eligible for membership in the convention, while excluding members of other branches of the government, we are unable to say that the General Assembly would have adopted section 3 with the invalid portions of that section eliminated.